It is tough out there for job seekers, particularly young job seekers.

The current market is flooded with graduates with only 68.8% of young Australians able to secure full-time work within four months of completing formal study. Youth unemployment currently stands at 12.9%, three times higher than the national average.

In this climate, being offered an interview is an exciting prospect. But when selection panels are overloaded with hundreds of carbon copy applicants all with similar skills and experience, unconscious bias can sometimes creep into hiring decisions by influencing the judgement of decision-makers. In some instances, this can lead to unfair or discriminatory questions posed to job seekers at interview.

Contrary to what you might think, the power balance at interview does not rest solely with your potential employer. You are not required to answer every question an interview panel asks you simply because you seek the ultimate goal of employment with that company or firm.

Some interview questions – particularly ones that canvass your personal circumstances, age or cultural background – are inappropriate and irrelevant and may even be unlawful under Australian employment and anti-discrimination laws.

Questions your potential employer should not be asking you

Australian employment law (section 351 of the Fair Work Act 2009) prohibits employers from discriminating against both employees and prospective employees on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

It is also against the law for an employer to treat you unfairly or harass you because of your age, disability, homosexuality, marital or domestic status, race, sex or transgender status of any relative, friend or colleague of yours, whether you are an applicant or an employee.

Some States and Territories also have anti-discrimination legislation in place which protects applicants against discrimination based on trade union activity, political opinion and criminal records. Employers must adhere to both Federal and State laws.

Certain jobs may require an employer to inquire at interview about your personal circumstances or opinions, current conduct, or past action or behaviour which can be very intrusive. A government national security position, for example, requires very high levels of security clearance. The majority of jobs in the private or public sectors, however, would not require such knowledge.

Below are some examples of questions that are inappropriate, irrelevant, offensive or unlawful. For most positions, you should never be asked these questions at interview:

“Do you have a partner?”

“What is your marital status?”

“Do you intend to start a family or are you currently pregnant?”

“What is your cultural background?”

“How old are you?”

“Are you religious?”

“How many religious holidays do you observe each year?”

“Have you ever been arrested?”

“Are you heterosexual or homosexual?”

“Do you have friends or family who are homosexual?”

“Do you have any health conditions?”

“Can you provide us with your social media usernames and passwords?”

But what does this mean?

It is unlawful for an employer to ask you these questions since your response may unfairly prejudice their decision to hire you.

Be wary of employers who begin a line of indirect questioning designed to extract this information from you without directly posing the question. This also contravenes anti-discrimination legislation.

Put simply, employers cannot ask you questions about the above issues and use your answers to disadvantage you or negatively inform their decision regarding your employment with their company or firm. They also cannot ask questions designed to obtain information about the above issues.

Employers are limited to asking questions which relate to the “inherent requirements” of the position, such as your skills and experience.

Some common practical scenarios:

In most circumstances, an employer cannot ask your age. If you are applying for a job in a bar, however, your employer is entitled to ask whether you are over 18 years of age as this goes to the inherent requirements of the role.

An employer is prohibited from asking “Have have ever been arrested?” but is free to ask “Have you ever been convicted of a crime?”For certain roles, this information will be critical in making an assessment regarding your suitability for the position. If you have previously been convicted of money laundering and are applying for an accounting position at a financial services firm, this information is relevant and not considered to be unlawful.

An employer is prohibited from asking “Are you are married?” because it not only reveals how much time you are willing to dedicate to the job (which may detrimentally impact a decision to hire you) but also indirectly discloses your sexual orientation.

An employer may not ask “Is English your second language”but they may ask whether you are able to speak any other languages.

Equally, an employer may not ask “Do you have children?”but they may ask “What hours are you available to work?”or “Do you have any commitments that would prevent you from travelling with work?”In a situation where you apply for a retail position and your employer asks whether you have children and then relies on the information you provide when deciding not to offer you the job, you can make a complaint to the Australian Human Rights Commission for discrimination based on family responsibilities.

An employer may only ask you about certain health conditions if this will impact your ability to do the job.

I’m not aware of this practice occurring in Australia. However, I am very concerned by overseas reports of employers demanding social networking passwords. Requests of this kind are extremely privacy invasive, and I would suggest, very difficult to justify. At this stage, we have not received any complaints about this issue but I would strongly advise employers against making such demands. Social media profiles have privacy controls for a reason and generally, if a person wishes to keep their online interactions private they should be able to do so. Again, I remind people to be thoughtful about what they are posting online and limit the amount of personal information they are sharing.”

Although Australian social media law is underdeveloped, anti-discrimination legislation does offer some useful protections where your refusal to provide a password negatively impacts a hiring manager’s decision to employ you.

Discrimination in practice

Katie* has felt the effects of discrimination directly. In an interview for an internship, her interviewer asked for examples of leadership experience outside of the Jewish organisations she participated in.

He was very frank and spoke about him knowing a Jewish partner at the law firm I used to work at and so claimed to know a lot about ‘how the Jewish community work.’ He also said the point of the interview was for them to try and find people who were ‘the right fit’ for their firm and how their firm was all about finding people who value diversity and global mindsets (basically insinuating that because I was Jewish I didn’t value these things).” Katie said.

Katie answered the question by detailing the parts of her life which were not connected to the Jewish community, to which the interviewer responded, “Wow that’s impressive.”

[It] made me feel sick because it felt like he was happy I wasn’t really in the Jewish community, I then followed up by saying that I was actually really proud of my Jewish background and … didn’t think that it was relevant to me doing a clerkship at the firm” Katie said.

A few days following the interview Katie called the company’s human resources representative, who was also present at her interview, to explain how uncomfortable the question regarding her cultural background had made her feel. Her comments were met with defensiveness from human resources and the comment “What do you want me to do about it?”

After receiving an offer for a second interview, Katie decided to withdraw her application from the selection process.

What can you do when faced with a discriminatory interview question?

Employers are under an obligation to avoid discriminating against current or prospective employees.

Job interviews are a platform to impress and to show off your skills and experience so declining to answer a question can seem very difficult and overwhelming, particularly if you believe it will jeopardise your employment prospects. It is critical to remember, however, that you are entitled to do so.

Importantly, if your refusal to answer a discriminatory question influences an employer’s decision not to employ you, this is also considered to be discriminatory behaviour by an employer.

When faced with inappropriate questions, you may wish to politely decline to answer by saying:

I am not comfortable with that question and would prefer not to answer it.”

You may also wish to go on the front foot by saying:

How is this question relevant?”

This response will force a hiring manager to either justify the reason for their question or realise the error and quickly move on to the next question.

If you believe that you have not been offered a position due to an answer you did provide at an interview, which was discriminatory in nature, you have several options such as:

First speaking calmly with the person or organisation that treated you unfairly. Explain why you believe that you have been treated unfairly and that you believe this is unlawful. The company or firm may have a grievance process that you can follow.

Making a complaint to the Australian Human Rights Commission – they will help you to resolve the issue. The complaint must be referred to the President, who must inquire and conciliate the complaint. If the President decides that the conduct was not unlawful discrimination, you have the option of pursuing your complaint through the Federal Court of Australia. The court can order that you are employed or awarded damages.

Seeking legal advice and commencing a civil action under State or Territory legislation.

Generally, you have 12-months from the time you experienced the discriminatory behaviour in which to make a complaint. Despite the above options, however, it is rare for such cases to go to court due to a lack of evidence. Discrimination is often “invisible” as many employers do not provide a reason for failing to employ a specific candidate who may be the subject of discriminatory behaviour.

While it pays to know your personal rights, proactively protecting these rights when seeking employment in the current market can often seem unrealistic. Most of us need that job, and therefore believe that the costs of objecting to discriminatory behaviour by a potential employer are outweighed by the need to secure a regular income.

Making a complaint may seem like an extreme response, but many companies will continue to engage in discriminatory practices until candidates take a stand.

*Names have been changed as source wishes to remain anonymous.

Further Information

Resources for employees:

If you, or someone you know, has experienced discrimination at interview contact:

Managing underperformance best practice guide – information about how to take reasonable management action to make sure employees are doing their job properly. Disciplinary action carried out by a manager in a reasonable, lawful way is not discrimination.

Legal Notice

The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.

About Rebecca Torsello

Bec is a final year Law/Arts student. She has interests in media and constitutional law. She enjoys a good cheese platter and, like most law students, relies on a balanced diet of caffeine and pastries to get her through her degree.

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